Regulatory reform book earns high praise
The Law Foundation’s regulatory reform project offers huge potential to positively influence public policy. There was backing for that view recently from one of New Zealand’s leading law reformers, Professor John Burrows.
Professor Burrows is a leading commentator on the New Zealand legal system. His distinguished career includes, most recently, terms as a Law Commissioner and Co-Chair of the Government’s Constitutional Advisory Panel.
He spoke at the recent launch in Wellington of the book “Framing the Commons – Cross Cutting Issues in Regulation” (Editors Professor Susy Frankel and Dr John Yeablsey). This is the third and final essay collection of the Foundation’s three year, $1.85 million study of the challenges around regulation in New Zealand.
Professor Burrows stressed the importance of the book not just to regulators, but to broader policy-making.
“Many of the messages in the book are relevant not only to regulation, but to law making in general. Much of the book should be staple diet for policy advisers,” he said, concluding: “The book deserves a wide audience among those who make, reform and develop our law.”
The project’s multi-disciplinary study team was led by Professor Susy Frankel of Victoria University Law Faculty, and included experts from the New Zealand Institute of Economic Research and law firm Chapman Tripp.
The study team’s other major output was the New Zealand Law Foundation Regulatory Reform Toolkit, a free, user-friendly online information database to help anyone examine regulatory problems.
At the launch, Professor Burrows noted the ad-hoc way that regulatory schemes have tended to develop in response to immediate concerns and political considerations.
Because regulation constrains human behaviour, it was important to choose regulatory tools based on principles and rationality, which the project sought to identify.
The book examined what was unique about New Zealand to help assess the appropriateness of overseas solutions for our conditions: “This chapter takes a big step to teasing out exactly what is different about New Zealand. Lawmakers now have some criteria when they ask whether overseas reform solutions should apply here,” he said.
Two chapters look into monitoring of legislation, advocating more effective post-legislation monitoring and trial, or pilot, schemes in some circumstances to see how proposed legislation might work in practice.
“Often legislative schemes do not work quite as their framers intended…so it is important every so often to examine whether the legislation needs amendment or rethinking,” he said.
Another chapter studies the question of certainty vs discretion – detailed prescription at the outset, or open-ended standards that give regulators more discretion.
Professor Burrows said that modern legislation covering building, food and electricity regulation was considerably longer and more detailed than the earlier acts they replaced.
“Chapter four says that the ‘rule of law’ answer is not always the best one…sometimes open-ended standards can actually conduce to certainty more than minute detail.”
The final chapter looks at bringing analytical techniques to state-driven behaviour change. It stresses the importance of rigorous problem analysis and examination of all alternatives to addressing a problem.
Professor Burrows noted the wisdom of the sentence “the politics come first” – in a democracy like ours, political acceptability is critical.
“And while I am on wise sentences, here is another from this valuable book: ‘Some things take time to develop.’ In other words, sometimes it is better to let things lie so that more consensus can develop around them, rather than trying to force a premature solution on a divided public. The Constitutional Advisory Panel of which I was recently co-chair took that line on a number of contentious matters.”
The Law Foundation provided funding of $1.85m to the three-year Regulatory Reform Project.